Saturday, November 29, 2014

Our Supreme Court And Our Future

In the run up to the Bush v. Gore election I came of the
opinion that the Supreme Court, and nominations therefor, had become the most
critical issue in presidential elections.
The Democrats were still in the habit of nominating high quality judges
who possessed good judicial temperaments and fine legal minds. President Clinton had nominated Justices
Breyer and Ginsburg, both on the liberal side but very good, fair minded Justices. Republicans, on the other hand, had taken to
nominating partisan political operatives.
President Reagan had nominated Justices Kennedy, O’Connor, Rehnquist,
and Scalia. Justice Thomas, an acolyte
of Justice Scalia, had been nominated by President George H.W. Bush, as had Justice Souter. Justice Stevens, a fine justice and a Liberal, had been nominated by
President Ford in more bi-partisan times. There would very soon be
a demonstration of the political activism of this court.

Republicans and Democrats, and their nominees for the Court,
were and still are at considerable odds mainly over social issues, maybe also
on issues of criminal procedure. On
matters economic they generally share a top-down Neo-Liberal mindset, although
the cost-benefit analysis of the more Liberal members of the Court features
more of an element of social justice. The
conservative members of the Court are more on the Libertarian side, with a
heavy states’ rights component. For
better or worse, all of the justices, and indeed all of our politicians except for outliers like Bernie Sanders, seem to agree on the importance of globalizing the
world’s economies and favoring the interests of large corporations and their
investor class.

The 2000
Election

Candidate Al Gore came out ahead in the straight up vote
count, and appeared to be winning the Electoral Vote count too, but something happened. In Florida, where the governor was candidate
George W. Bush’s brother, the counting of the very close popular vote was
stalled over hanging chads and other improbable details. "Hanging chads" is still my definition of ridiculous. How does a chad come to hang? Answer: by someone poking that spot with the poker, as in voting for that spot, that's how. Any other chads hanging? No? Then it's a vote, asshole. Both sides lawyered up and the stalemate went
on for days. The Supreme Court stepped
in and ultimately they decided the issue.
George W. Bush was declared the winner in Florida, and thus took the
election.

This activist court decided the election, and George W. Bush
became the President of the United States.
We all know how that turned out.
We’ll be paying for it for a long time, with nothing positive to show
for that lost eight years. The loss in dollars is variously reported to be between four and ten trillion dollars, resulting from the unnecessary reduction in tax revenue, the senseless, counterproductive wars in the Middle East, the losses of the financial crisis of 2008 and the resulting bail-outs, and the years of negative economic growth that were all directly attributable to George W. Bush and the policies of the Republican Party. So thanks for that, Reagan appointees.

The Serendipity
of the Post-2000 Court

Appointments by President’s Bush and Obama have had a
beautiful symmetry to them. With two
appointments each, all successful nominees have replaced justices with similar
legal styles and political inclinations.

President Bush the Younger put John Roberts on the court
after Chief Justice Rehnquist, and Justice Sam Alito after Justice O’Connor. Let’s not even get into Bush’s unsuccessful
nomination of White House counsel Harriet Miers.

President Obama has put Justice Sotomayor on the Court,
after Justice Souter, and Justice Kagan, after Justice Stevens.

No major shifts in the conservative/liberal balance
there.

Imagine what would have happened if candidate John McNasty,
I mean McCain, had won in 2008. (I am
informed, and believe, that “McNasty” was McClain’s high school nickname.) Before that election I was feeling very
Chicken Little about the potential effect on the Supreme Court. If McCain had appointed two justices to
replace Justices Souter and Stevens there would have been a seven to two conservative
majority, and the sky would actually have fallen.

The Present

Our current Supreme Court is very politically active. The Republican appointed conservative majority decides which results best
serves their political point of view and then invents legal rationales to
support their decisions. Sure, corporations can have religious views
and act on them to the detriment of the rights of others! Take that, homosexuals and women! Sure,
giving unlimited money to politicians is a free speech issue, a First Amendment
right! Take that, democracy! Sure, we don’t need that Voting Rights Act
anymore, we’re Post Racial! Take that,
minorities! This is just the beginning.

Very soon the honorable ladies and gentlemen of the Court
will be revisiting a well settled but still politically volatile issue, the
Affordable Care Act. I say well settled
because it was passed by both houses of congress, signed by the President, and
it has already withstood a test in the Supreme Court. It’s the law of the land, according to our
precious rules. That’s as settled as law
gets. But the political winds changed
with the recent mid-term elections, so it appears that the issue is back on the
table.

The ACA has performed very well in the real world, increasing the percentage of the insured, bringing
healthy, young paying customers into the pool of the insured and starting to
bring overall health care costs (spending) down. It has enhanced health security for millions of Americans and it has brought increased efficiency to the American economy in general. It is, however, politically anathema to
conservatives, and it is, however, associated with a president who is being
subjected to unrelenting, irrational opposition by conservatives in general and
Republicans in particular. Our current
court is siding with the irrational forces on this one. There is a good chance that this cabal of
politically motivated, activist justices will void an important element of the
ACA, the tax credit for health insurance purchased pursuant to the act. That would destroy all of the benefit of it
and we’d be back to square one.

The Future

The recent mid-term election saw the turnout of eligible
voters at about 37% (thirty-seven percent).
Of these, approximately half voted for Republicans. Slightly more than half, allowing Republicans
to achieve majorities in both houses of the national legislature and both
houses of the legislatures of many states.
Now we are being told that this
was a mandate for Republicans, that this eighteen or so percent of American
voters are the voice of the American Public, demanding a return to failed
Republican policies and illustrating a general rejection of President Obama’s
policies.

What will happen in 2016 cannot be seen clearly at this
time. The presidency, congress, where
will it all go? The voter turnout in the
mid-terms is a bad sign. Are people
really so apathetic? Are they so
disillusioned? And the ones that actually voted, are they really so
ignorant about what is going on in America? Are they really so afraid of things like immigrants,
homosexuals, science, Muslims and black Americans? The pattern of voting in the mid-terms seems
to indicate that people have no objection to losing their civil and political
rights, that they prefer corporate prosperity over their own prosperity, that
they are thrilled to work harder for less, that they enjoy health insecurity, that
the infrastructure of America is fine just as it stands, and that they believe
that short term profits to corporations are more important than long term economic
security for the United States. So there is reason to be concerned
about the 2016 election.

Beyond 2016, of course, it is even more difficult to see
what will happen. Who gets elected? Who dies, and when? What unforeseen events will overtake us, and by whom will they be manufactured? It would be too much to expect that any
possible result of the 2016 election would precipitate the sudden appearance of
peace, equality, security and prosperity. But
given the choice between the alleviation and the exacerbation of the very real
horrors of our current situation, I’ll take alleviation if I can get it.

No comments:

stat counter

About Me

Mr. C is: a reformed lawyer; a religious atheist; a useful "Handy Man;" an amateur social scientist; a beloved teacher; a well liked husband and father; Ambassador Emeritus from, and to, Planet X; a freelance professor; taxi driver to the stars (Joe DiMaggio and Ronald McDonald, both out of uniform); an excellent fire fighter; an enthusiastic but untalented musician; an experienced counselor; a top-notch disk jockey; an all around get-along-guy; a cunning linguist; a would-be lifestyle victim; a Masonic wannabe; a frequent reader; Professor Irwin Corey's Ph.D. adviser; an accomplished driver and motorcyclist; a famous rockologist; a reliable but indifferent bullshit detective; a poor speller; a proud United States Navy veteran (honorably discharged, barely); the Ayatollah of Ass-o-Hola; a drug legend; a Returned Peace Corps volunteer (Thailand); a generally charming man; nationally and internationally known from coast to coast; a legend in his own mind; a cultural-anthropological critic-at-large; an avenging angel who coolly bides his time; Soul Brother number 37; and a friend to the poor.